Henderson v Mabstoa

[*1] Henderson v Mabstoa 2009 NY Slip Op 52778(U) [29 Misc 3d 1204(A)] Decided on February 4, 2009 Supreme Court, Bronx County Victor, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 4, 2009
Supreme Court, Bronx County

Joyce Henderson, Plaintiff(s),

against

Mabstoa et al., Defendant(s).



15851/2006

Paul A. Victor, J.

RELIEF SOUGHT

The defendants move to vacate the order of this Court, dated June 18, 2007, or, alternatively, to renew or reargue that decision which conditionally struck their answer unless they complied with specific outstanding discovery, within 60 days of the date of service of the order upon them.

FACTUAL BACKGROUND

On June 18, 2007, this court issued a decision and order conditionally striking the defendants' answer due to its failure to fully comply with previous court orders and discovery demands. The order was served with notice of entry on the defendants on June 27, 2007, and actually received by them on July 3, 2007. In that order, this court specifically held that:

"The court grants defendant's motion to the following extent: the answer is stricken unless within 60 days after the date of service of this order the defendant fully complies with the previous court orders and/or discovery/disclosure demands, contained in the statement of facts annexed hereto. Finally, defendant is to pay $1000 to the plaintiff as a monetary penalty for having to make two motions to compel this discovery. This is the order and decision of the Court."

In the above decision the defendant was ordered by the Court to provide the following discovery: (1) a supervisor's accident report without hole punches, if available; (2) photos of scene and photos mentioned in the above report; (3) laser print of accident diagram; (4) EBTs of John Williams [the bus operator] and Livingston Bryant, on or before September 1, 2007; (5) a report or memo of this incident from the safety and training division, Department of Buses; (6) findings, conclusions and recommendations following the safety or disciplinary hearings by NYCTA of bus operator John Williams; (7) transcript of this hearing or name and address of stenographer; (8) in the camera inspection of a bus operator William's personnel file, and (9) any statements given by John Williams.

On August 29, 2007, in partial compliance with the above decision and order, the defendants [*2]served upon the plaintiff a response in which they enclosed (1) photocopies of the supervisors accident/crime investigation reports; the operator's daily trip sheet; the MV-104; and New York City police accident report, all of which were dated September 6,2005 [which, upon inspection, were supplied without hole punches]; (2) photocopies of photographs; (3) a photocopy of the accident diagram; (4) a report of the safety and training division, dated November 2,2005, and (5) copies of handwritten statements by the bus operator, John Williams. The response also indicated that, on August 28, 2007, the bus operator's personnel file was sent to the court for in the camera inspection; that there was no transcript for any disciplinary hearing; and that an examination before trial of the bus operator would be scheduled at a mutually convenient time. The response made no mention of the production of Livingston Bryant for a deposition, as required by the above court order and decision.

On August 30, 2007, plaintiff responded to the defendants' materials by letter in which (although acknowledging receipt of the defendants August 29, 2007 letter and its enclosures) claimed that the defendant had totally fail to comply with the Court's prior order. In that August 30 letter, counsel for plaintiffs stated "[s]pecifically, the following, pursuant to the June 14, 2007 [sic] Court Order, have not been provided: (1) the supervisors accident report without hole punches; (2) photographs of the scene and photographs mentioned in the above report; (3) laser prints of the accident diagram; (4) any report or memoranda regarding this incident from the safety and training division, Department of Buses; (5) the findings, conclusions and recommendations following the safety or disciplinary hearing of bus operator John Williams; (6) the transcript of the disciplinary hearing or the name and address of the stenographer, (7) an in camera inspection of the bus operator Williams' personnel file; (8) any statements given by John Williams; and (9) payment of $1000 to the plaintiff as a monetary penalty." Plaintiff's counsel concluded his letter by stating "in summary, you have completely defaulted in failing to even providing [sic] one iota of the information you were required to provide pursuant to Justice Victor's order dated June 14, 2007 [sic] and we will not be attending Mr. Williams' deposition tomorrow."

It appears to the court that plaintiff's counsel's claim of total non-compliance is disingenuous. Clearly, albeit late, the defendants did supply substantial discovery and there is no claim by plaintiff that the documents provided by defendant were inaccurate or inadequate in any way.

In any event, on August 31, 2007, the bus operator and counsel for the defendants unilaterally appeared at the defendants' office for the driver's deposition; however, the deposition was not conducted since plaintiff's counsel refused to appear. On September 11, 2007, defendant's counsel wrote to plaintiff's counsel memorializing a phone conversation during which plaintiff's counsel refused to reschedule the examination before trial. On October 16, 2007, plaintiff's counsel wrote to the defendants and confirmed that they would not reschedule the deposition of the bus operator because the defendants' answer had already been stricken for non-compliance with terms of the court order.

CONTENTIONS OF THE PARTIES

The instant motion was served upon plaintiff's counsel on September 25, 2008, and originally [*3]marked returnable on November 20, 2008. The defendant argues that the prior order should be vacated for the following reasons: (1) that the plaintiff's motion upon which the decision was based was submitted without opposition from the defendants, and (2) that by the time the motion was made the defendants had substantially complied with the previous court orders and/or discovery demands but did not have the opportunity to provide opposition papers which would have demonstrated the same, and (3) that the defendants could have fully complied with the court order of June 18, 2007 within the 60 day time frame but for plaintiff's counsel's obstructionist behavior, and (4) the defendants have a meritorious defense to the plaintiffs action, and (5) that the defendant's failure to pay the sanction of $1000 imposed upon them in the court order was due to the failure of plaintiffs counsel to provide them with the necessary W-9 form needed to process the payment.

Plaintiff alleges that the defendants have failed to comply with numerous discovery demands, and prior court orders for discovery. As to the order at issue, the plaintiff claims that the discovery supplied by the defendants on August 29, 2007 was three days late, since the court's 60 day deadline had expired on August 26. They also claim that the discovery response was incomplete, as outlined by the letter sent by their counsel on August 30, so that they were within their rights to decline to depose the bus driver on August 31 since they did not have sufficient materials in hand to properly formulate questioning of him. Finally, plaintiff's counsel alleges they had never been asked to supply a W -9 form so that the $1000 penalty imposed by the court could be processed, so that their failure to supply one could not be viewed as obstructionist.

LAW RELATING TO REARGUMENT AND RENEWAL

CPLR Rule 2221, entitled, "Motion affecting prior order," provides in pertinent part:

(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion...

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination...

While related to each other in purpose to some degree, motions to reargue and to renew are distinct in that the motion to reargue is based on no new proof; it is merely an attempt to get the Court to change its mind about a previous decision. In comparison, the motion to renew is based on proof not used in the previous motion. However, courts are lenient in terms of considering a motion that is improperly labeled. For instance, if a motion is based upon new proof but is labeled as one for reargument, the courts will treat it as one to renew. Turkel v. IMI Warp Knits. Inc. 50 AD2d 543 (1st Dept. 1975). While a motion to reargue must be made within the time to appeal from the original decision, a motion to renew can be made at any time.

DISCUSSION

This Court's prior order was signed on June 18, 2007, and served upon the defendants with notice of entry on June 27, 2007. Consequently, the defendants could have moved for reargument within 30 days of June 27,2007, i.e. July 26, 2007. (See, CPLR 2221[d][3]) Since the instant motion was not made until September 25, 2008, the motion for reargument is untimely and is, accordingly, denied. However, a motion which seeks renewal of a prior order has no time constraint since it is based on newly discovered facts or a change in the law. (See, CPLR 2221[e]). However, the motion for renewal must allege new facts which, if they had been offered at the time of the previous motion, would have changed the determination. Here, the defendants offer no new facts, but argue that they have complied with the court's mandate. At issue is whether the defendants fully complied with the Court's prior order, or if not, whether they were prevented from complying due to the behavior of plaintiff's counsel.

Preliminarily, it must be noted that the court ordered the defendants to comply with all discovery within 60 days of the date of service of the order with notice of entry. As stated previously, the notice of entry was served upon the defendants on June 27, 2007, and thus, full compliance should have been accomplished on or before August 26, 2007. As can be seen from the correspondence and submissions described above, the parties dispute and disagree as to the extent of such compliance. In any event, defendants' response, which was dated August 29, 2007, obviously, exceeded that time limit by several days and was therefore late. However, even if the Court considered this untimeliness as de minimus, it appears that the defendants have still failed to fully comply with the spirit and letter of the Court's prior order. By mailing the bus operator's file for in camera inspection just three days before the expiration of the September 1st court-ordered deadline for conducting the deposition of said bus operator, defendant virtually insured that the court-ordered deposition would not take place since said documents would not be available to plaintiff for use at said deposition. Moreover, while a significant amount of material was provided, there are two portions of the ordered discovery which defendants do not adequately address or explain, i.e. (1) the failure to make Livingston Bryant available for a deposition on or before September 1, 2007; and (2) the failure to pay the court-ordered monetary penalty of $1000.

As to the deposition of Livingston Bryant, neither party comments in their submissions as to whether such deposition was held or was waived. However, even if that portion of the court order was complied with, it is not disputed that the defendants have failed, to date to pay the $1000 monetary penalty which the Court also assessed. The explanation now provided as to why payment was not made appears disingenuous and, in any event, is not supported by any ancillary proof; and is thus rejected by the court. That failure, standing alone, is sufficient for this Court to strike the defendants answer. (See, Washington v. City of New York, 18 Misc 3d 1109A [Sup Ct Bronx County 2008].)

CONCLUSION

The defendants' motion is denied in all respects. [*4]

This constitutes the decision and order of the court.

PAUL A. VICTOR, J. S. C.

Dated: February 4, 2009